While it was not the first case to so hold, the secret is clearly out in Juvrud i.e., that the court has authority to terminate a deferred adjudication as soon as it wants after the plea of guilty. Will this affect anyone's interest/practice in offering deferred? What kinds of cases?

[This message was edited by Martin Peterson on 11-22-02 at .]

I think I'd make it clear to all parties that I won't waive my right to a jury trial if the courts are going to change the deferred bargain down the road. Plus, I think prosecutors need to get a bill ready to bring deferred into line with regular probation on this issue.

As a practical matter, can we bargain for a term in the agreement of no early discharges?

This issue is discussed in The Perfect Plea, a book that all prosecutors received recently as a result of the generosity of TDCAA and grant funding. On page 61, the author notes that the State could require the defendant to not seek early termination as part of a plea agreement.

Of course, enforcement of such an agreement, which deals with avoiding a future event, is sometimes difficult. Look at the recent problem in Travis County. They agreed back in 1969 not to oppose parole; a subsequent DA opposed parole; and now they are having to retry a murder case that is very old.

We should be careful about seeking a legislative solution to every bad judicial decision, though.

Was the remedy the court applied in the Travis County case the right one? Shouldn't the defendant be compensated for denied parole somehow rather than cut free completely?

Or, if a federal judge can order a new trial, why can't he order specific performance (order the withdrawal of the parole protests and reconsideration by the parole board). Perhaps the parole board could be asked if the protests influenced their decision. Given parole policy over the last few years, I would believe that parole wasn't happening, regardless whether a protest came or not.

But, I must admit, agreeing to not protest parole is not a good idea as a part of a plea agreement.

Can a defendant charged with capital murder waive his right to parole in exchange for a guilty plea, thus creating a life without parole sentence? What about in cases where a defendant bargains for a term of years? Is BPP governed by the plea bargain agreement?

The defendant does not have to request parole or mandatory supervision, he benefits from those laws automatically. Thus, there is nothing for him to waive, the hearing comes whether he asks for it or not. I suppose the BPP could take the plea bargain into account in making its decision, but I do not think it would feel bound by it, nor would any court enforce specific performance. I think the same issue controls the judge's authority under 42.12 sec. 5(c). The defendant does not have to ask for dismissal and discharge prior to the expiration of the term of community supervision nor does he have any burden to prove his and the best interest of society will be served. Its not even clear there must be a hearing-- just the formation of an opinion by the court.

We ran into this issue in the Penry case when he attempted to waive his right to parole and also wanted to present evidence of such a waiver to the jury, thereby creating a de facto life without parole option.

The AG's office helped us brief this issue and we discovered there is very little Texas authority directly on point. We did find a case from the Mississippi Supreme Court that held that such an agreement would be violative of the separation of powers doctrine in the sense that a judicial body would be attempting to dicate how the executive branch of government, i.e., the BPP, would exercise its discretion as established by the Legislature. Keeping in mind also that if the Legislature wanted life without parole it could create it and there are some very strong policy reasons for allowing the BPP to have the discretion to parole someone, e.g., parole as incentive for good behavior and parole for medical reasons.

Our judge in Penry didn't allow it and the Court of Criminal Appeals had held in its last Penry opinion that evidence of a defendant's unilateral waiver of right to parole was not proper evidence for the jury.

When then Governor Bush commuted Henry Lee Lucas' death penalty to life in prison, he claimed that it was life without parole. Could he do that?

Interesting stuff, all of it. I figure W was just counting on the fact that, with all those murders tied to Lucas (even excluding the ones he did not do), BPP would never cut him loose. All moot now that he is dead. Did he know that Lucas would be dead of natural causes only a couple years later?

I'm NOT advocating LWOP as a regular sentencing option. I was just wondering if you could create an LWOP sentence via a plea bargain, other than via multiple stacked life sentences. Anyone who crafts such a deal must remember the burden they are placing on the poor folks at TDC.

[This message was edited by John Rolater on 11-25-02 at .]